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October 16, 2017

SCOTUS grants cert on three criminal procedure issues

Before taking a break for the next two weeks, the US Supreme Court this morning issued this new order list with grants of certiorari in four new cases.  There of these cases involve criminal procedure matters, and here are brief accounts via SCOTUSblog (with links thereto):

Currier v. Virginia:  Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

United States v. Microsoft Corp.:  Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.

Dahda v. United States:  Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge's territorial jurisdiction.

None of these cases get my sentencing blood racing, and the most interesting aspect of the order list for hard-core sentencing fans might be a short opinion by Justice Sotomayor (joined by Justices Ginsburg and Breyer) dissenting from the denial of certiorari in a couple of Florida capital cases in which defendants argued "that the jury instructions in their cases impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory."  

October 16, 2017 at 09:56 AM | Permalink


Excited to see this renewed emphasis on the 4A. Orin Kerr must be going crazy.

Currier....yes, I do think he loses his rights. He can't have it both ways.

Microsoft...this is a big one...my own view is that MS should win but I do understand how many people will find the consequences of such a win unsatisfactorily. It is a good case to test those who take legal theory seriously vs those who focus on practical consequences.

Dahda...this is the easiest of the three..yes, he should win. He should win for the same reason MS should win. The difference between the two cases is that the practical consequence of a win here is a lot less than a practical consequences in the MS case because it is easy enough to avoid the entire problem from the beginning, which isn't true in the MS case.

Posted by: Daniel | Oct 16, 2017 10:14:24 AM

Middle case seems to have potential to say something about the 21st Century 4A.

Posted by: Joe | Oct 16, 2017 10:34:02 AM

Per the death penalty case, this older article might be of interest:

SCOTUS ‘Shadow Docket’ Leaves Death Penalty Watchers in Dark


Posted by: Joe | Oct 16, 2017 11:56:23 AM

Microsoft could get interesting depending upon how it comes down. There are a lot of different strands in the case -- Fourth Amendment, statutory interpretation, jurisdiction, international law. Fourth Amendment is probably the least significant -- the Stored Communications Act requires a warrant-like finding; so, unless the Supreme Court finds that the intent of the Framers imposes an Eighteenth Century limitation on what qualifies as a warrant, the Fourth Amendment could easily drop out of the case.

The bigger issue -- one that impacts both state and federal cases -- is the jurisdictional one which has a statutory component. Typically, a search warrant must be served in the county (or federal district) within which it is issued. The Stored Communications Act permits a court in one state to issue an enforceable search warrant to an internet service provider based in another state. However, here, the communications are stored outside the U.S. Does that fact cut off the court order. If it does, why does it? Is this something that could be cured by a slight revision to the language of the Stored Communications Act or would it require an international treaty -- similar to the treaties on extradition?

I am not sure what the right result is under the statute as written, but there is certainly an argument that the purpose of the law favors the government.

Posted by: tmm | Oct 16, 2017 12:55:22 PM

Currier is the most interesting to me. I think they'll ultimately say that he can't argue Collateral Estoppel.

As way of background, severance for Firearm by Felon charges is more or less automatic in Virginia because the Commonwealth can introduce every single previous felony. This would obviously be very prejudicial in a Burglary trial. You can't bifurcate the guilt phase to decide first whether he possessed a firearm and only then whether he was a convicted felon.

On the one hand, the concerns of Ashe v. Swenson are still prevalent here. You don't want the government doing a weak case to get a tactical advantage in a later case. You also want consistency where one jury doesn't go one way and the other jury goes another way. This is especially true when there's the rock and a hard place of introducing prior bad acts vs. severing.

On the other hand (the reason I think he will lose) is the Collateral Estoppel we're talking about is only one way. If a defendant is found guilty of Burglary, he's still entitled to contest the Firearm by Felon even if the Jury decided the same crucial issue against him. Since defendants are in a position to prevent the government from having two bites at the apple by objecting to severing the charges, the danger of the government getting bites at the apple are minimized (it's at least a calculated risk as opposed to the decision of the government). That's true even when that risk has costs like in this case.

Posted by: Erik M | Oct 16, 2017 1:50:14 PM

@Eric M

Yes, I agree with "Since defendants are in a position to prevent the government from having two bites at the apple". It seems fundamentally unfair to let the defendant get the best of both worlds. The choice he faces is a harsh one, at time, but crucially it's his choice. That what breaks the contest in the government's favor to me.


The 4A doesn't drop out. Any type of jurisdictional limit placed on the courts will have huge ramifications on the 4A in other contexts because the modern 4A is basically predicated on the theory that if something is wrong on the internet any court anywhere can deal with, So even if, strictly speaking, the court were to not rule on the 4A issue the 4A lurks in the background, everybody knows that's what really at stake in this case. The actual content of whatever narrow holding they could come up with is irrelevant.

Posted by: Daniel | Oct 16, 2017 3:01:18 PM

Does anyone have a link to the last opinion in Currier that analyzes the issues? The scotusblog link is to a simple endorsement of the lower court rather than an independent look at the facts or law.

Posted by: Soronel Haetir | Oct 17, 2017 1:07:20 AM

This is the case cited:


Posted by: Joe | Oct 17, 2017 2:17:43 AM

Thanks Joe,

Have to agree Courier looks like a loser. I just don't see any fact necessarily decided by a burglary acquittal that has bearing on a felon-in-possession charge. Someone could have nothing to do with a burglary yet still later be a felon-in-possession of firearms stolen during that same burglary. The two simply don't have overlapping required proofs.

Posted by: Soronel Haetir | Oct 17, 2017 4:59:30 PM

Currier has two potential issues: 1) did the lower courts err by holding that Ashe does not apply when a defendant consents to separate trials; 2) If Ashe does apply, is defendant entitled to discharge. The lower courts only reached the first issue and that is the issue on which certiorari was granted.

On the issue before the Supreme Court, I am not sure that Currier's case is hopeless. However, even if he wins, the win is a remand back to Virginia to apply Ashe to the facts of the case. Looking at the summary of the evidence in the lower court opinions, the Ashe analysis is a close call. There is at least some evidence that would tie the guns to Currier after the burglary -- not sure that it is sufficient but that is not the issue under Ashe. There is at least the theoretical possibility that the burglars borrowed Currier's vehicle to commit the burglary and then brought the guns to Currier. That may be enough to defeat an Ashe claim.

Posted by: tmm | Oct 18, 2017 10:41:40 AM

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